Miscommunication can cost employers in FMLA, termination situations

Sometimes, employers learn the hard way that they may need to work together on some issues. Here are the facts of a particular situation in chronological order:

An employee had a history of positive job performance reviews.

In the spring, the employee told her employer that she would need surgery in the summer.

In June, just before applying for leave under the Family and Medical Leave Act (FMLA) for the surgery, she was terminated, effective July 2, 2015.

Somehow, despite the termination, the company’s CEO and VP of Human Resources (VP-HR) told the employee to proceed with her application for FMLA leave.

The company’s disability and leave administrator told the employee that she would get her job back after FMLA leave, and that her leave was approved.

The employee’s termination was upheld on July 2, 2015.

The employee filed a lawsuit.

What’s wrong with this picture?

This information is based on an actual court case, but the court’s opinion does not specifically indicate any particular individual the employee told about her need for surgery. Perhaps it was her supervisor. Apparently, however, this individual appears to have not communicated with the CEO, VP-HR, or the leave administrator, regarding this employee’s situation.

All the non-communication or miscommunication that took place left the company wide open for getting sued and losing the case. If an employee’s FMLA leave is approved, that employee has justifiable reason to believe that her job is protected. The employer’s arguments didn’t appear to even approach providing a non-FMLA-related reason for the termination decision.

In court, the employer also tried to argue that the employee might not have given proper notice of the need for leave; that the first notice was vague, and the second was untimely. The court was not buying the employer’s arguments. It indicated that the employee made multiple leave requests and, just before applying for leave, she was terminated, effectively denying her FMLA protections.

The employee, therefore, argued that her termination was triggered by her leave request. Since the employer offered no other justifiable reason for the termination, it easily appeared that the FMLA leave request was the reason.

While employees do not have any greater right to reemployment than if they hadn’t taken FMLA, this employer couldn’t even get a consistent message across to the employee. Some felt she needed to be terminated while others felt she was entitled to FMLA leave. The employer could not show that the employee would have been terminated even if she didn’t request FMLA leave, so its defense was inadequate.

If an employee should be terminated, ensure that the reason has nothing to do with the request or taking of FMLA leave, and be sure everyone is on the same — legal — page.

Brown v. HCA Health Services of New Hampshire, District Court of New Hampshire, No. 15-cv-323, January 1, 2016.